Monthly Archives: November 2008

I hope I don’t ever see my good friend Marc Randaza riding naked on his bicycle, even if he can do it protected by the First Amendment. He has a great story about this topic on his Blog the Legal Satyricon. Read it here.

According to an article published onOctober 22, 2008, in the Ventura County Star newspaper in California, the Ventura County Juvenile Court of California, denied mother Misty Lopez the right to choose the family for her newborn daughter. (Read it here)

Lopez signed over her newborn daughter to Luke and Jozette Jacobellis of Newbury Park in late September. However Lopez, who already has eight children, is under investigation by the County Human Service Agency, for 10 cases of reported child neglect, general neglect or child abuse, and therefore has lost her rights to make decisions about what is best for her child, according to the Court.

Lopez argues that no evidence has been found to support the claims and she doesn’t want the child anyway and is trying to do what is best for her. A hearing has been set for Nov. 19th.

The article does leave out one key issue to be addressed, and that is whether investigations or assessments have been done with regard to the foster parents selected by Lopez.

Considering that Lopez already surrendered the rights to her other eight children and is making efforts to do so with her ninth, I think the mother should have a choice on which family can provide best for her child, rather than having the child get lost in the system and rotate from house to house.

According to the California Senate research, about 77,000 children in California live apart from their families in child welfare supervised out-of-home care; and nearly half of them remain in the system for two or more years. (Source) So instead of allowing for the baby to be adopted and become attached to a foster family immediately, it is possible that the infant will instead be placed in foster care until two years of age.

However, according to Hill v. Patton, 85 P.2d 75 (N.M. 1938), “consent that one person may adopt a child does not give the court jurisdiction to aware it to another,” and “In adoption proceeding mother who has abandoned her child cannot limit court’s selection of foster parent to any particular petitioner.” Comp.St. 1929, §§ 2-105, 2-112.

The Court should find that the contract between Lopez and the Jacobellis is void. Nevertheless, it will be very interesting to see how the Court rules. We will see.

The Associate Press is reporting today that the small mountain town of Marshall, N.C., has agreed to pay $275,000 for banning Rebecca Willis from a community hangout after residents complained about her dirty dancing.

According to court documents, she was accused of gyrating and simulating sexual intercourse with her partner while wearing a skirt so short it exposed her underwear. Willis described her dance style as “exuberant and flamboyant” but not obscene.

She’s still not allowed to return to the refurbished train station where she once danced and socialized, but she said that’s OK with her.

A jury ordered the Boeing Co. to pay $236 million in punitive damages Friday for breaching a contract to build and launch satellites for a company headed by cellular phone pioneer Craig McCaw. Boeing now owes at least $607 million to ICO Global Communications, including $371 million in compensatory damages the jury awarded last week. The total could top $700 million after the court adds interest, ICO said.

The jury’s decision follows a four-week trial in which Reston, Va.-based ICO accused the aerospace giant of hindering the launch of its satellite network by fraudulently raising prices for the project. Boeing “was extremely hurtful and harmful to the company and almost destroyed ICO,” said ICO attorney Barry W. Lee.

Boeing spokeswoman Diana Ball said the company will appeal the case, citing “fundamental flaws throughout this trial.” She said the process could take several years.
ICO’s lawsuit, filed in 2004 in Los Angeles County Superior Court, stems from the company’s decade-old plan to launch a fleet of satellites that would broadcast video and other services to mobile device users around the world.

ICO contracted with El Segundo-based Hughes Electronics Corp. in the mid-1990s to build and launch 12 satellites. Boeing acquired Hughes in 2000 and inherited the ICO contract, but only finished two satellites — one of which was lost because of a failure aboard a Boeing Sea Launch rocket. ICO sued Boeing and its satellite division four years later over breach of contract after Boeing allegedly demanded ICO pay another $400 million to finish the job. Ball said costs of producing the satellites increased as ICO tried to delay the project during a major slump in the telecommunications sector.

ICO attorneys argued during trial that once Boeing got into the satellite communications business, its former customer became a competitor. Boeing’s attorneys argued the aerospace company attempted to keep the deal alive and accused ICO of canceling the contract for convenience.

The jury found Boeing acted with fraud and malice and awarded ICO $59 million from Boeing Satellite Systems, which is based in El Segundo, and $178 million from the Chicago-based parent company. The judge will determine whether $91.6 million in compensatory damages related to a separate contract with the parent company is already included in the $371 million award or should be added to the total.

This is just an example of how slow the justice system works and how long it actually takes to settle a case and how much can happen in the meanwhile. The case filed in 2004, brought to trial in June and the jury finally finished the damages’ verdict this past week.

ICO probably used anticipatory breach to sue Boeing since Boeing didn’t complete performance on the contract and demanded $400M more to finish the project. Since this is a sale of goods agreement, the UCC would apply. ICO also claimed Boeing didn’t fulfill the K since Boeing now considered them a competitor not a customer in the satellite communication business.

A federal appeals court in New York last year ruled in their favor, calling the FCC’s policy “arbitrary and capricious.”

The commission then appealed to the Supreme Court, seeking restoration of its power to penalize the networks airing “indecent” speech, even if it is broadcast only once, and even if it does not describe a specific sex act.

Such language is seen with greater, albeit varying, frequency on cable television, the Internet and satellite radio, which do not use public airwaves.

But the federal government is charged with responding to viewer complaints when “indecent” language reaches television and radio, which is subject to greater regulation.

The crux of the issue concerns a number of fleeting expletives by celebrities and indecency on television shows.

The commission specifically cited celebrities Cher and Richie’s potty-mouth language during the 2002 and 2003 Billboard Music Awards, which aired on Fox. Richie, in an apparently scripted moment said, “Have you ever tried to get cow s–t out of a Prada purse? It’s not so f—ing simple.”

The complaint against ABC involved “NYPD Blue,” a now-canceled scripted police drama, and the one against CBS involved “The Early Show,” a news and interview program.

The Appeals Court ruling stated that the FCC did not adequately explain amendments to and enforcement of its “vague” policy on broadcasts of profanity. Now, the US Supreme Court will weigh in on the “isolated” use of such words — politely referred to as “fleeting expletives” — and the power of government to clamp down on what it sees as pervasive indecent language on the public airwaves.

I first talked about this case back in February. See Texas “Obscene Device” Law Struck Down. The issue was that the Texas legislature enacted a broad prohibition on the “selling, giving, lending, distributing, or advertising” of “obscene devices.” The law defined “obscene device” as any device “designed or marketed as useful primarily for the stimulation of human genital organs.” At that time, the law was just struck down as unconstitutional by the 5th Circuit Court of Appeals.

Recently, on October 29, 2008, attorneys for the State of Texas informed the Appeals Court by telephone that the State did not intend to seek a writ of certiorari in this cause. What that means is that the decision by a three-judge panel of the Fifth Circuit Court of Appeals on Feb. 12, which overturned Texas’ obscene device law, remains the law of the land, at least in the three states that form the Fifth Judicial Circuit: Texas, Louisiana and Mississippi.

The Fifth Circuit decision in Reliable Consultants relied heavily on the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas, which said that the government had no business interfering with (or criminalizing) the private sexual affairs of citizens. As Judge Thomas Morrow Reavley wrote in the Reliable decision, “Because of Lawrence, the issue before us is whether the Texas statute impermissibly burdens the individual’s substantive due process right to engage in private intimate conduct of his or her choosing. Contrary to the district court’s conclusion, we hold that the Texas law burdens this constitutional right. An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right.”

My close friends Lou Sirkin and Jennifer Kinsley were instrumental in the outcome of this case.Nice work!